DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 20th day of January, 2023

Present : Sri.Vinay Menon V.,  President

            : Smt.Vidya A., Member           

            : Sri.Krishnankutty N.K., Member                           Date of Filing 16/10/2020

CC/130/2020

Dr. Suresh Kumar

S/O Madhavan

Indheevaram

P. O. Mele pattambi, Pattambi Taluk

Palakkad - 679 306                                                   -        Complainant

(By Adv. K. Dhanjayan)

Vs

1. Tata Motors Pvt. Ltd

Regd. Office, Bombay House

24, Homi Mody Street, Fort

Mumbai -400 001

Maharashtra

2. Tata Motors Pvt. Ltd.

Regd. Office, Bombay House

24, Homy Modi Street, Fort

Mumbai -400 001

Represented by its Manager /Managing Director /Authorised Signatory

(1^st & 2^nd opposite parties by Adv. M/s V. Krishna Menon & B. Sulfikar Ali)

3. Abdul Rahiman

General Manager

Tata Motors (Passenger Vehicles)

4th Floor, Live In Tower

Opposite Gold Souk

Vyttila, Cochin -682 019

(Ex-Parte)

4. The Manager (sales)

HP Continental, Bi Wheelers Pvt. Ltd.

Opposite ITC, Thirurkad, Perinthalmanna

    Malappuram – 679 351                                                 -        Opposite parties.

(Abated)

O R D E R

By Sri.Krishnankutty N.K., Member

1. Pleadings of the Complainant.      

The complainant booked online for a TATA Harrier vehicle using the official website of first opposite party by paying an advance of Rs. 30000/- on 14/12/2018.  He received the acknowledgement from the third opposite party, confirming the booking.  He also received an e-mail stating that the delivery of the vehicle will be from the fourth opposite party and the expected delivery will be by mid of January, 2019.  Since the delivery didn't happen as promised the complainant has been continuously contacting the opposite parties, but he didn't get the vehicle.  Ultimately he sent an e-mail on 18/03/2019 for cancelling the booking.  On receipt of this mail, the opposite parties contacted him and requested him to reconsider his decision and asked him to have test drive with the fourth opposite party dealer.

As the delivery of vehicle was getting delayed, the complainant sent E-mail to third opposite party on 08/05/2020 asking him not to proceed with the delivery and refund the advance amount.  The opposite parties have not responded to this and hence the complainant has approached this Commission seeking refund of the advance amount along with interest @12% per annum, compensation of Rs 2.00 lakhs apart from a cost of Rs. 30,000/-.

2. Notice was issued to the opposite parties.  The first and second opposite parties hereinafter referred as the opposite party Company entered appearance and filed their joint version.  Third opposite party didn't enter appearance, hence was set ex-parte.  Since the notice sent to the fourth opposite party returned undelivered, the complainant was asked to take further steps to issue notice to fourth opposite party.  Since the complainant didn't take any steps, the complaint as against forth opposite party stands abated.

The main contentions of the opposite party company are,

1. The complainant is not a consumer as per the provisions of Consumer Protection Act since the mere payment of advance amount will not suffice to qualify him as a Consumer within the meaning of the Act.
2. Their relationship with forth opposite party dealer is that of a principal to principal and not that of principal to agent and hence they are not liable for the actions of the fourth opposite party.
3. Booking of TATA vehicle through the website is subject to terms and conditions published in the website which clearly state that the booking amount of Rs. 30,000/- will be transferred to the bank account of the dealer selected by the customer immediately after the booking.  Accordingly the advance amount paid by the complainant has already been transferred to the bank account of the fourth opposite party on 19/12/2018.  (Wrongly mentioned as 19/12/2020 in the version).  Since the advance amount has already been passed on to the fourth opposite party, the liability of refund lies with them.

They have also quoted the relevant portions regarding booking and refund from the terms and conditions for online booking of vehicles.

3. Issues involved

Based on the pleadings of the complainant and opposite parties, the following issues were framed.

1.   Whether there is undue delay in delivery of car?

2.   Whether the complainant is entitled to realize interest as sought for in the prayer of the complaint?

3.   Whether there is any deficiency in service on the part of opposite parties?

4.   Reliefs & costs if any.

4. The complainant filed proof affidavit and marked documents Ext. A1 to Ext. A9 as evidence.  Opposite parties didn't file proof affidavit.

Ext. A1 is the copy of bank account statement of the complainant showing the debit entry of Rs. 30,000/- towards TATA motors on 14/12/2018.  Ext. A2 is the copy of booking confirmation mail received from tatamotors.com showing the name of fourth opposite party as dealer and other details of booking.  Ext. A4 is the copy of e-mail sent by the complainant for cancellation of booking and refund of the advance amount.  Ext. A5 is the copy of reply mail from customercare@tatamotors.com.  Ext. A6 & A7 are the copies of a series of e-mail correspondence between the complainant and opposite party's customer care.  Ext. A8 is the copy of letter sent by the complainant to the fourth opposite party seeking refund of the advance amount.  Ext. A9 is the copy of the letter written by the complainant to third opposite party seeking refund.

5. In the absence of proof affidavit and any documents marked as evidence from the side of opposite parties, we have only with us the proof affidavit and the documents adduced as evidence by the complainant to draw any conclusion on the issues mentioned above.

Issues 1&2

6. The Ext. A1, the bank account statement of the complainant clearly show that the advance payment for booking has been made from his account with ICICI bank, Pattambi Branch on 14/12/2018 in favor of the opposite party company.  Ext. A2 is the Booking confirmation mail dated 14/12/2018 received by the complainant from the opposite party company clearly showing the booking portal order Ref. No., model and the booking amount.  Ext. A3 is another mail dated 14/12/2018 sent by the opposite party company to the complainant showing the model, portal order id, sales order number, sales order date and the dealership as the forth opposite party.  It is also mentioned in the mail that the dealership will inform the date of delivery by mid- January.  The e-mail requesting for cancellation of booking (Ext. A4) was sent by the complainant on 17/03/2019. i.e. after more than 3 months from the date of booking.  On the same day the complainant received a mail from the opposite party company acknowledging the concern raised by him.  Ext. A5, A6 series and A7 series are the correspondence made between the complainant and opposite party company by way of e-mail from 17/03/2019 to 07/06/2019, on the issue of delay in delivery of the vehicle and refund of the advance amount.  In the e-mail dated 18/03/2019, the opposite party company had mentioned that if he is interested to go ahead with the cancellation, the fourth opposite party would process the refund.  On 24/07/2019, the complainant sent a letter to the forth opposite party asking for refund. (Ext. A8).  On 19/03/2020 he sent another letter to third opposite party indicating that he would proceed legally if the refund is not happening within 15 days (Ext. A9) which has been acknowledged by him.

7. From the chronology of events narrated above it is evident that the opposite parties failed to deliver the vehicle or make the refund to the complainant till the date of this complaint inspite of his continuous follow up.  Hence it can be concluded that the complainant cancelled the booking and opted for refund only because of the fact that the delivery didn't happen in time as promised.  In this connection it is pertinent to note that the lead time for delivery has been mentioned as 10 weeks in the version filed by the opposite parties.  Further, their version that the complainant didn't complete the procedures such as selection of color variant etc. is not acceptable since none of the replies to the complainant, the opposite parties made any argument to this effect at any point of time.  Regarding refund, the version of the opposite party says that refund will be made within 21 days   of request for cancellation made by way of a mail to the id customercare@tatamotors.com.

Issues 3&4

8. In the present case neither the delivery happened nor the refund made within the time schedule stipulated by the opposite parties themselves.  This is a case of clear deficiency in service on the part of opposite parties.  

9. Regarding the question of which opposite party is liable to make the payment of reliefs, the argument put forth by the1st opposite party company is that the advance booking amount collected has been transferred to the fourth opposite party immediately after the receipt as per the terms & conditions of online booking and refund is their responsibility.  But the 1^st & 2^nd opposite parties have failed to adduce any cogent evidence to prove their case.  Hence their pleadings, however genuine it might be, has not been proved.  The 1^st opposite party Company, being one of the big brands in the country appoints dealers only after proper due diligence and assessing the credibility, credit worthiness, and trustfulness and hence getting the order for refund complied by the forth opposite party should not have been difficult.  Hence, even if it is the failure of the fourth opposite party it is to be construed as the failure on the part of the 1^st opposite party company.  Hence we are bound to cast the liability on the opposite party company.

6. In the result, the complaint is allowed ordering the following reliefs.

1.   The opposite party company is directed to refund the advance booking amount of Rs.30,000/- along with interest @10% per annum from the date of booking till  the date of payment.

2.   The opposite party company is also directed to pay Rs. 20,000/- as compensation for the deficiency in service and mental agony caused and

3.   Rs 10,000/- towards cost.

The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.   

Pronounced in open court on this the 20th day of January, 2023.

                                                                                                    Sd/-

                                                                                 Vinay Menon V

                                                       President 

                                                              Sd/-

                                                        Vidya A

                                Member   

                                                                                                        Sd/-

                                                                                        Krishnankutty N.K.

                                                                                               Member

Appendix

Documents marked from the side of the Complainant:

Ext. A1 - Bank account statement of the complainant.

Ext. A2 - Booking confirmation from the opposite party company dated 14/12/2018.

Ext. A3 - E-mail from opposite party company dated 14/12/2018.

Ext. A4 - E-mail sent by the complainant for booking cancellation dated 17/03/2019.

Ext. A5 - Reply mail from opposite party company dated 17/03/2019.

Ext. A6 & A7 - Series of email communications between the complainant and opposite                    

                       party company.

Ext. A8 - Letter written by the complainant to the 4th opposite party dated 

               24/07/2019.

Ext. A9 - Letter addressed to the 3rd opposite party dated 19/03/2020.

Documents marked from the side of opposite party: Nil

Witness examined: Nil

Cost – Rs. 10,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.